Cootharinga North Queensland v Wolfs

An issue which will be of interest to personal injury practitioners arose here: whether it is necessary for a plaintiff to plead in a claim for damages for personal injuries claiming negligence the risk of harm the defendant ought to have guarded against.  The Court of Appeal resolved the issue in the affirmative by finding that the pleading under consideration, in not articulating the risk of harm, was deficient and had a tendency to prejudice or delay the fair trial of the proceeding. The injustice caused by the respondent’s failure in that regard sufficed to warrant granting leave to appeal.

Bond JA, Ryan and Cooper JJ

20 June 2025

The applicant sought to appeal the dismissal of its strike-out application of the respondent’s second further amended statement of claim. [5]. It had unsuccessfully argued at first instance that the pleading was lacking since, inter alia, it did not correctly identify the risk of harm of injury against which it was alleged it ought to have taken precautions. [16], [17]. The primary judge stated that:

“ ... ultimately it is clear that it is an error to work backwards from how the injury might have occurred, because, in such a situation, the totality of considerations may not fully be appreciated, and, as was argued on the part of [Ms Wolfs], there are various ways to articulate a risk of harm and it is appropriate and proper that all should be addressed. I am satisfied that that appropriately and properly reflects the basis upon which the pleading should be made and considered in relation to this matter.” [21].

The applicant contended that the primary judge failed in terms of not providing adequate reasons for his decision to dismiss the application, and not deciding the material issues which it raised. [23].

The Court accepted that the primary judge had erred in not striking out the part of the plaintiff’s pleading which concerned the risk of harm issue. [33]. In the lead judgment, Cooper J articulated:

(1)The decision to dismiss the strike out application was made because of an error of the type identified in House v The King (1936) 55 CLR 499 since the primary judge incorrectly identified the relevant issue to be determined on the strike out application. [31].

(2)That whilst the pleading pleaded that a risk of injury existed, and otherwise identified the relevant factual circumstances, it did not “articulate what the risk of injury was in a way which would expose the contest between the parties’ differing formulations of the risk of harm”. [32].

(3)That the purpose of pleadings is to clearly outline a party’s case in order to ensure the general principle of procedural fairness that a party is afforded the opportunity of meeting the case against them and, incidentally, to clarify the issues in dispute. [33].

(4)It followed that, as a matter of procedural fairness, the defendant ought to have been made aware how the plaintiff would seek to frame the risk of harm in advancing her claims at trial. Placing the defendant in the position of going to trial without being cognisant of the risk of harm in the plaintiff’s pleading would result in a substantial injustice. In addition it is imperative that the court is aware of how the plaintiff articulates the risk of harm in order for it to resolve the contest between differing formulations in advance of addressing the questions raised by s 305B Workers’ Compensation and Rehabilitation Act 2003. In circumstances where the plaintiff’s pleading did not articulate the risk of harm and had not met these requirements, as such it had a tendency to prejudice or delay the fair trial of the proceeding. Given the primary judge had not recognised that deficiency in the pleading, accordingly he omitted to take a material consideration into account. [33].

(5)The fact that the plaintiff had failed to coherently articulate the risk of harm in her pleading justified the court’s intervention in granting an appeal of the decision to dismiss the strike out application in order to correct a substantial injustice. [34].

Disposition

The applicant was granted leave to appeal and the appeal against specific orders which had been made at first instance, with each of those orders being set aside. In lieu, it was ordered that certain paragraphs of the second further amended statement of claim be struck out with leave to replead. It was further ordered that the plaintiff pay the defendant’s costs of and incidental to the defendant’s strike out application to be assessed on the standard basis; and that the respondent pay the applicant’s costs of and incidental to the application for leave to appeal and of the appeal to be assessed on the standard basis.

A Jarro